©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 29 2. Leave and Accommodation Statutes 2.1 Pregnancy Disability Leave Under the Pregnancy Disability Leave Law (PDLL), California employers with five or more employees must grant up to “four months” (17.33 weeks) of unpaid leave per pregnancy1 to employees disabled by pregnancy, childbirth, or related medical conditions,2 regardless of whether the employer allows disability leaves generally.3 Regulations state that the reinstatement must be to the exact same position (as opposed to an equivalent or comparable position), and that the employee is entitled to a written guarantee of reinstatement upon request.4 A pregnancydisabled employee who exhausts her four months of PDLL leave also may be entitled to additional leave under FEHA, as a reasonable accommodation for a disability.5 Note that California thus requires a pregnancy disability leave, not a maternity leave. Employers who grant motherhood leaves (unrelated to disability) without also granting leaves for fathers or other parents arguably discriminate against male employees because of their gender. The PDLL requires further accommodations, such as temporary transfers, for conditions related to pregnancy, childbirth, or related medical conditions.6 A California employer may temporarily transfer an employee over her objection only if she seeks a reduced schedule or intermittent leave and a transfer would better accommodate her needs than her regular job would.7 California employers must maintain and pay for group health benefits during the employee’s pregnancy disability leave as if she were actively working during the leave, up to a maximum of four months within a 12-month period (commencing on the date the pregnancy disability leave begins).8 Employers must maintain health coverage for up to seven months if employees take their full PDLL leave and then their full CFRA leave for baby bonding.9 Employers must not interfere with or restrain the exercise or attempted exercise of PDLL rights.10 Further, starting on June 27, 2023, when the federal Pregnancy Workers Fairness Act (PWFA)11 went into effect, covered employers12 are restricted by federal law from forcing pregnant employees to take leave if another reasonable accommodation can be provided that would allow the employee to continue working. Although the PWFA does not prescribe specific reasonable accommodations, the Congressional House Committee on Education and Labor Report on the PWFA provides examples such as: the ability to sit and drink water, receive closer parking, have flexible hours, receive appropriately-sized uniforms and safety apparel, receive additional break time, or be excused from strenuous activities. Different from the ADA and the PDLL, the PWFA temporarily excuses pregnant workers from performing essential functions of their jobs absent undue hardship. This means that temporary accommodations for pregnancy-related work restrictions may be reasonable under the PFWA even if the worker is unable to perform one or more essential functions of the position. 2.2 Lactation Accommodation In 2010, Congress amended the FLSA to require employers to provide nonexempt employees with a reasonable amount of unpaid break time in a private location (other than a bathroom) to express milk for their children of up to one year in age.13 The 2022 PUMP for Nursing Mothers Act (PUMP Act) extended these same protections to exempt employees. The California standard has always been more lactation-friendly than the federal standard:
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